SUPREME COURT: Great Moment

The nine members of the U. S. Supreme Court were officially dismayed and privately rather flattered’. For six weeks they had held an unparalleled place in the sun. Although the Court is divided five to four on society, even the four Justices whose evenings are almost invariably spent in solitude—Justice Sutherland resting venerably in bed, Justice Van Devanter mourning for his wife, Justice Brandeis sitting up with a detective story, Justice Cardozo burning the midnight oil over the classics of law and literature— even they felt an unwonted thrill. For the majority of the Court who appear in society the six weeks were a succession of thrills, the result of conspicuous reticence. Newshawks prying for details gathered many tales. At a reception Justice Roberts was introduced to a young British diplomat who did not catch his name. “This gold matter is exciting,” said the Britisher. “I’m sure your High Court would not dare to throw the country into confusion.” Said Justice Roberts with all dignity: “Young man, do not try to intimidate the Court!”

At one dinner Justice Stone, tasting a delicious sauce, turned to his hostess. “My, my!” he exclaimed, “I should like to know that recipe.” “That’s my secret, Mr. Justice,” smiled his hostess, “but I’ll trade mine for yours.” Justice Stone could not reply.

Final titillating moment came last week when the nine modest Justices had to have Capitol police open pathways through the crowded corridors to their offices. If there was any doubt that the Court’s decision was to be rendered that day it was dispelled 40 minutes before the Court assembled, when Mrs. Brandeis and Mrs. Butler took seats in the Courtroom. The wives of other Justices followed. But the Administration had already guessed that the decision was to come: Secretaries Morgenthau and Hull had a 1 o’clock luncheon appointment at the White House; Mrs. Morgenthau and Mrs. Dern were in the Court before any of the Justices’ wives.

At noon precisely the Justices filed into their courtroom filled with tense notables. Unable to get seats, Senators Harrison and Barkley stood with William Green of the A. F. of L. in the centre doorway, listening. At 12:01, as on any other decision day, Chief Justice Hughes began reading the majority opinions. But his voice was far louder than usual, far more dramatic. Lest his audience be held too long on tenterhooks, he summarized the decisions first: Congress’ right to abrogate the gold clause in private contracts was upheld; citizens were denied the privilege of suing the Government in the Court of Claims for payment in old-sized dollars on either gold certificates or Government bonds. In short the Government had won its case on every point.

Two minutes later the news was on the wires. Ten minutes later in every stock and commodities exchange throughout the land prices were soaring upward. If the Justices believed that their upholding the Government would calm the economic world, they were mistaken. In every market there was turmoil—orders to buy, buy, buy and few or none to sell. Within 15 minutes the Chicago Board of Trade, the grain markets of St. Louis and Kansas City were closed to prevent a buying panic. The New Orleans’ Cotton Exchange stayed open and the price of cotton jumped $1 a bale. The New York Stock Exchange likewise continued to function, although the ticker fell eleven minutes behind sales. The stock of the Baltimore & Ohio—the gold clause of whose bonds had been specifically invalidated by the decision—soared from a forenoon price of 10 to 15. Other railroad stocks made similar gains; the market seethed.

Meantime, ignorant of this excitement, Chief Justice Hughes read on, giving reasons, citing precedents for his opinion. At the White House play-by-play reports of the decision came to the President and his friends. To Secretary Morgenthau the luncheon planned as a possible council of war had become purely a social occasion. Attorney General Cummings and Senator Robinson came to join the White House jubilation. An official bulletin said: “The President is gratified by the decisions.” To the New Deal, however, the import of those opinions may yet have significance.

The Court upheld the right of Congress —under the Constitutional power of regulating money—to void gold clauses in private bonds. But no such clean bill of health was given the Government in abrogating the gold clauses of its own bonds. Government bondholders were denied the right to sue in the Court of Claims on the somewhat extraordinary grounds that it is impossible to tell how much damage they have suffered since it is now illegal to own gold. However, the Court did not uphold the propriety of the Government’s offering devalued money in place of old-size dollars to its own bondholders. That, said the Court, was not a question of regulating the value of money but of the Government’s keeping its promises. In short, Government bondholders have now the right but no legal opportunity to collect, and morally the Government is no better than a malefactor who takes refuge behind a legal technicality—in this case the right not to be sued without its own consent. No pretty position is this for any government to be in. It posed a problem in New Deal morals.

Almost as disconcerting to citizens was the news that the legality of the country’s monetary policy was approved by only five of the nine Justices of the Court. New Dealers were pleased that Chief Justice Hughes had joined with Liberals Brandeis, Cardozo, Roberts and Stone to give them comfort. Little did they care about the dissent of four Justices, for they look down very long Liberal noses at the four Conservatives: Justices Sutherland, Van Devanter, Butler and McReynolds—in particular at Justice McReynolds. To many an impartial observer the majority opinion, upholding the Government in every case without exception, would have seemed stronger had Mr. Hughes not thundered so loud, and the dissenting opinion would have borne more weight had it been written by a less uncompromising reactionary than Mr. McReynolds. Seldom have words like his been spoken in the Supreme Court.

Announcing to begin with that he would not read his decision—it would be on record for anyone to see—Justice McReynolds launched not into an opinion but into an elegy for honesty and good government.

“It seems impossible to overestimate the result of what has been done here this day. . . . God knows, I do not want to talk about such matters but it is my duty. . . . The Constitution is gone. . . . This is Nero in his worst form. We are confronted with a dollar which has been reduced to 60¢ which may be 30¢ tomorrow, 10¢ the next day and 1¢the day following. “We have tried to prevent its entrance into our legal system but have tried in vain. . . .”